CLOSE
Tags Posts tagged with "estate plan"

estate plan

by -
0 251
Stock photo

By Britt Burner, Esq.

Britt Burner Esq.

If you are a parent of a young child, you have probably heard that you should have a will. But do you know why? There are two main reasons a parent of a minor child needs a Last Will and Testament and, in some cases, a revocable living trust. The first is to create a testamentary trust to hold assets distributable to the child who cannot legally inherit assets as a minor. The second is to name a guardian in the event both parents pass away before the child reaches the age of eighteen. 

So, what happens if you die without a will or trust? This is referred to as dying “intestate.” If you die intestate, to the extent that you have assets in your sole name, they will be distributed according to the state’s intestate succession statute. 

In New York, the spouse inherits the first $50,000 of your assets and the balance is distributed 50% to the spouse and 50% to the child(ren). This is usually not practical for a married couple, since most people want the surviving spouse to inherit everything, with children inheriting only upon the death of both parents. 

If you are not married and 100% of the assets go to your child(ren) or if you are married and it is only 50%, the default scenario is incredibly inefficient. If assets are to be paid out to a minor rather than to a testamentary trust created by your will or trust, a guardian of the property will be appointed by the court to handle the finances. Even if a family member or friend is eventually appointed, the court still appoints a guardian-ad-litem to represent the interests of the child. This is expensive, intrusive and ongoing. An annual budget is required and any deviations must be approved by the court. 

Furthermore, the assets remain in an account that is held jointly with the court and can only be accessed by court order. Additionally, the child will be able to take possession of all remaining assets at either 18 or 21 years of age – a time when the child may be too emotionally immature or inexperienced with finances to handle this sum of money. 

It makes sense to engage in estate planning that creates a trust for the benefit of your child(ren) upon your death. Any life insurance, bank accounts or retirement assets can list the trust as beneficiary. Organizing the disposition of your assets is crucial to making sure that those that are dependent upon you will be cared for at the time of your death.

Beyond the finances, there is the consideration of physical custody or guardianship of the minor child. If both parents pass away without a will that nominates a guardian, someone must petition the court to be appointed. This someone could be anyone, not necessarily the individual(s) you would choose to raise your child in your absence. This could lead to different family members or friends asserting control, with a judge ultimately deciding who will take on this responsibility. 

The simple solution to make this awful situation smoother for those you leave behind is to prepare a will. That way you can choose who will raise your child, who will handle your child’s inheritance and under what circumstances your child will inherit.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

by -
0 326
Stock photo

By Britt Burner, Esq.

Britt Burner Esq.

Turning 18 is a right of passage. According to New York State law, you are now and adult! With the reward and freedom of adulthood also comes responsibility. 

You may be on a continued education path to college or starting a new job. Some new adults are still receiving monetary and housing support from their families while others find themselves navigating on their own. Either way, on the “adulting to-do list” you should also add the basics of estate planning. Whether you are 18 or 81, there are four key documents you should consider: health care proxy, HIPAA release form, living will, and power of attorney.

Once adulthood is reached, a parent no longer has the authority to make medical decisions on behalf of their child. Since you are no longer under your parents’ care, they do not have an automatic right to access your medical records; no one has that right. It is important to designate who may receive this information if you should become incapacitated and, further, who you want to make medical decisions for you if you cannot do so for yourself. 

A health care proxy allows you to appoint an agent to make medical decisions for you in the event you cannot do so. You must choose a primary agent but can nominate alternates in case your primary is unable or unwilling to act. If you are in the hospital and have not signed a health care proxy, the law has a default regarding who can make medical decisions. Is this who you would choose? 

Beyond the proxy, a HIPAA release form should also be considered. HIPAA is the Health Insurance Portability and Accountability Act. It is the law that protects your personal medical information. A HIPAA release authorizes others to obtain your medical information. Executing these documents will ensure that your parent (or whomever you designate to make such medical decisions) will not face resistance when it comes to inquiring about the status of your health or providing care instructions to your doctor.  

In contrast, the power of attorney is a document that has to do with your financial and other non-medical information. This document will name an agent to make financial decisions on your behalf. The power of attorney does not strip you of your financial powers but rather duplicates them so that your agent can act on your behalf. A power of attorney can be beneficial if you need someone to pay a bill, apply for financial aid, or hire a professional, such as an accountant or lawyer. 

You may also want to consider a living will. A living will is a guide to your agents regarding end-of-life decisions, such as whether you want to be kept alive by artificial means if you have an incurable disease or are in a persistent vegetative state. 

Although these are questions that you will hopefully not face for decades, planning for your future is an important way of taking control of your life. The decisions you make today are not set in stone; these documents can be changed at any time. Anyone entering the first phase of adulthood should become familiar with these documents. 

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

by -
0 590
METRO photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

For the charitably inclined, there is always a question of how to be most efficiently leave money to charities in your estate plan. Charitable giving ranges from simple small monetary amounts to more complicated charitable trusts. No matter the option, there are potential income tax and estate tax implications to consider.

Leaving a specific bequest in your ill or Trust is one common type of charitable gift. You leave a set amount to a charity of your choosing at the time of your death. For those that want to cap the amount that given to charity, this is a good option. These specific bequests are paid out first, off the top of the estate. Thus, if you only have $100,000 in your estate and leave specific bequests totaling $100,000, there will not be any assets left to the residuary beneficiaries. Usually, the residuary portion of an estate is the largest. But not always and especially not if you do not correctly allocate your assets.

Residuary beneficiaries are those that receive a percentage or fractional distribution of the “rest, residue, and remainder” of your estate. Take the example above, if your total estate assets equal $300,000, then after the $100,000 charitable bequests, your residuary beneficiaries receive the remaining $200,000. A charity can also be one of your residuary beneficiaries, in which case the charity would receive a fractional share of your choosing. 

In certain circumstances, it is beneficial to include a “disclaimer to charity.” You would add a provision in your Will or Trust directing that any “disclaimed” amount of your estate goes to charity. This is done for estate tax planning purposes. If your estate is more than 105% over the New York State estate tax exemption amount ($6.11 million in 2022), you then “fall off the cliff.” This means that your estate will receive no exemption and the entire estate taxed from dollar one. However, if your Will or Trust has a disclaimer provision, any amount that a beneficiary rejects goes to the charities that you listed.  That gift to charity serves to reduce your taxable estate, moving it back under “the cliff” and saving a great deal in taxes. This is an especially useful tactic for those with estates that are on the cusp of the exemption amount.

Another method of charitable giving is gifting tax-deferred retirement assets. While you are still living, you can gift from your retirement account up to $100,000 per year as a qualified charitable distribution. Making the gift directly to the charity removes the required minimum distribution from your taxable income. There are some pitfalls to avoid.  Not all plans qualify for this type of distribution, not all charities are considered “qualified,” you cannot receive a benefit in exchange for the distribution (ex. a ticket to a charity concert), and you must gift the funds directly from the retirement account to the charity.

In addition to charitable gifting from a retirement account during your lifetime, you can list charities as  after-death beneficiaries of your accounts. If you have a mixture of individuals and charities as beneficiaries, you may want to leave the retirement assets to the charities. This saves your individual beneficiaries from paying income tax on distributions. Especially in light of the SECURE Act, which requires that most beneficiaries of retirement account withdraw all the funds within ten years. The income tax consequences for such beneficiaries may be steep if there is a large retirement account. 

While there are several charitable giving options, each person will need to navigate a solution that suits them best. An experienced estate planning attorney will take into account the size of the estate, potential tax liabilities, how much you want to leave to charity, and your other beneficiaries. With proper planning, you can ensure your gifts go as far as possible to benefit the charities that you hold dear.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

by -
0 980
Pixabay photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

Although cryptocurrencies like bitcoin have gone mainstream, non-fungible tokens (NFTs) were relatively unknown until 2021. You may have heard about “Bored Apes,” “Crypto Kitties” or that artist Beeple sold an NFT for $69 million. If you do not exactly understand what an NFT is, you are not alone.

Unlike cash, which is interchangeable, non-fungible items are one of a kind. An NFT is a unique digital asset built on a blockchain that comes with the right to use it. An NFT can be a photograph, animation, graphic image, video, meme, tweet, or anything digital. The value of the NFT lies in its uniqueness, which is attributable to its traceability on the blockchain.

The easiest to understand use of NFTs is when they represent real-world assets or serve as certificates of authenticity. For example, Nike distributing an NFT with every sneaker to protect against counterfeiting. Owning a multi-million dollar digitally generated avatar is a bit harder to grasp. But 1 out of 10 Americans invested in NFTs in 2021, so even if the appeal escapes you, the concept of scarcity should be familiar.

What to do if your grandson gifts you an NFT for Christmas or grandma sends an NFT as a birthday present? Keep the password safe! NFTs reside in “digital” wallets, which are stored on a computer, flash drive, or an app on your phone. You must have the private key or seed phrase (at least 12 unrelated words) to access the wallet. This private phrase is the only way to retrieve the NFT.

Whether you buy the NFT or it is gifted, the basis in the asset is the purchase price. Just like stock or real estate, the basis (purchase price) is used to calculate the capital gain or loss for tax purposes when the item is sold. Likewise, the NFT gets a step up in basis to fair market value at the owner’s death.

NFTs pass like any other asset at death — if you can find them. Unless the private key is known, there is no way of accessing and gaining ownership. We recommend redundancy. Write the phrase down and store it some place safe, keep it in a password protected file on a computer and flash drive. Since there is no central repository to verify ownership of an NFT, we advise clients to make specific bequests of an NFT in their wills. Calling attention to it ensures that the Executor at least knows of its existence. Do not include the password of course, since a will becomes public after probate!

You can also hold an NFT in a Trust or Limited Liability Company (LLC). An NFT cannot be retitled in the name of a Trust — but you can transfer the NFT on paper, much like we do with stocks and LLC interests. Some practitioners champion using an LLC because it is easier to transfer compared to transferring the NFT on the blockchain. However, avoiding recording the transfer on the public ledger defeats the purpose of transparency and authenticity. There are other advantages to an LLC to consider, such as transfer tax discounts and asset protection.

The future use, value, and regulation of NFTs is unknowable. Perhaps one day your Last Will & Testament will be stored in a digital wallet. For now, just make sure to disclose NFTs to your estate planning attorney, so she can incorporate them into your estate plan.

Nancy Burner, Esq. is the founder and managing partner of Burner Law Group, P.C. focusing her practice areas on Estate Planning, Elder Law and Trusts and Estates. Burner Law Group P.C. serves clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, NYC and East Hampton.Visit www.burnerlaw.com.

by -
0 1003
Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

When planning for the differently abled, the use of supplemental needs trusts as part of your estate planning will ensure that you have provided protections for those with special needs and disabilities.

When considering your estate planning, it is important to consider any beneficiaries who may have special needs or disabilities. Receiving an outright inheritance could negatively affect these individuals, as oftentimes they are entitled to, and receive, need-based government benefits such as SSI, Medicaid and Group Housing, to name a few, which either supplement or fully cover the living and medical expenses of the individual.

Safeguarding these benefits by using supplemental needs trusts rather than an outright distribution can ensure that you can leave funds to a loved one who has special needs without the risk of interfering with their government benefits.

Supplemental needs trusts can be established as “first-party” or “third-party trusts.” This article highlights third-party supplemental needs trusts which are, simply stated, trusts funded with the assets of a third-party, anyone other than the differently abled individual.

To understand the difference, first-party trusts are funded with the assets or income of the differently abled person and are often used to safeguard benefits after the individual receives an inheritance or some other windfall. First-party supplemental needs trusts are also often used to protect money that was in the name of the individual at the onset of a disability. 

First-party supplemental needs trusts are available to persons under the age of 65, and thanks to recent legislation, can be created by the individual him or herself, a parent, guardian or through the court. Although a terrific planning tool, when possible it is preferable to address these planning needs ahead of time to ensure no interruption of benefits and a maximum preservation of assets. 

The first-party trust requires a payback provision which dictates that any monies that remain in the trust at the time of the individual’s death must be paid to the state in an amount equal to the medical assistance paid on behalf of the individual. 

Third-party supplemental needs trusts can either stand alone or be incorporated into your estate planning. These trusts can be created by anyone for the benefit of the disabled individual. They can be funded upon creation or can be prepared with the idea of funding at the time of the death of the creator.

The assets in the trust can be used to provide the individual with comforts they would otherwise not be able to afford. Because these trusts are set up with the fund of a third party, unlike the first-party supplemental needs trusts, they do not have a payback provision.

Upon the death of the original beneficiary of the trust, whatever assets remain in the trust can be distributed in accordance with the grantor’s wishes. By leaving assets in a supplemental needs trust, you would be able to provide for your loved one and ensure the continuation of imperative benefit on which he or she relies.

It is important to note that funds between a first-party trust and a third-party trust should never be co-mingled. Specifically, if monies which originated with the disabled individual go into a third-party trust, the protections afforded to third-party trusts (i.e., no payback provision) may extinguish and a payback could be required. 

Overall, supplemental needs trusts are invaluable for planning for those differently abled. The trusts can enhance the quality of life for the person and supplement the benefits he or she is already receiving.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

by -
0 1015

By Nancy Burner, Esq.

Nancy Burner, Esq.

The best way to manage your own affairs while you are alive and to provide properly for your beneficiaries at your death is to have an estate plan. There is a distinction between having a “plan” and having documents. The close attention to detail, knowledge of the law and past experiences of the attorney you are dealing with should help you create the plan that fits your own circumstances.

The first step of the process is to gather a comprehensive list of your assets. Since everything in the plan is different depending on the personal circumstances, it is important for the attorney advising you to know what type of assets you have and in what quantity. An individual with a home worth $400,000 may require a very different plan than an individual with the same amount of assets that are held in cash or retirement accounts. 

Once you have your list of assets together, you can review it with the attorney and discuss the goals of the representation. For many clients, the primary goal is to make sure they are taken care of during their own lifetime with the maximum amount of control over their assets without concern for what happens upon their death, while others may have concern for those they wish to benefit at their death.  

Take the single mother with a disabled child; while she is concerned about her own well-being, she would likely consider the well-being of her child to be equally as important. By contrast, a single person with no children will have different concerns and, therefore, a different estate plan. 

Discussing your goals with an attorney is the greatest value the attorney can provide. Estate planning attorneys are more than just document drafters. They are advisers. With your attorney, you should be running through the different scenarios that may occur at the time of your death and making sure that you are satisfied with the outcome of each based on the plan you decide to create. 

The estate planning attorney can flag for you other issues that may be of concern. Depending on your age, income and assets, it may be prudent to discuss long-term care insurance or asset protection planning for Medicaid purposes. You can discuss whether or not your beneficiaries will need a trust for any reason, including creditor protection, protection of government benefits or protection from themselves if they overspend and undersave. 

After you have discussed your assets and goals with the attorney, they can recommend options for you. Often, there is more than one option available. A description of the pros and cons of each plan and the cost to you should help you determine what is best in your circumstance. This is the point at which the documents can be created in draft form. If you are satisfied with the documents as written, they will then be signed with the attorney. Each document will have its own signing requirements for validity that will include the presence of witnesses and/or a notary public.  

If you have never created an estate plan or have not reviewed it in the last five years, you should reach out to an attorney to start the process.  

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

TBR News Media is your local news and entertainment website.
We provide you with the latest breaking news and information for your community.
Contact us: [email protected]

Most Viewed

©